Affirmative action; A controversial idea that a person’s race can make them more valuable as candidates for intellectual positions, either in the workplace or as students. This topic was first born in the 19th century, with Lyndon B Johnson’s executive order number 10925 in 1961. His order created a committee to “ensure equal opportunity for all qualified persons, without regard to race…or national origin,” by “[considering] and [recommending] additional affirmative steps.”(presidency.ucsb.edu) Or, in other words, by taking affirmative action. However, back then, the meaning of the phrase “Affirmative action,” was different than it is today. It used to mean nondiscrimination against minority groups by adding more minority candidates to the selection pool(for intellectual positions) without giving them preferential treatment. So, giving more minorities a chance to be selected, but not giving them an individually greater chance. The modern meaning of affirmative action has shifted into not just adding more minority candidates, but trying to reach a certain number or ratio of minorities, thereby giving them an individually greater chance of selection. This advantage is the root of the issue that has sparked the many fiery debates over affirmative action, and begs the question: Is it morally justified to raise a minority group above a majority to bring different cultures and views into intellectual positions? Questions like these are extremely difficult to answer, and will continue to be asked for years. However, while people may continue to argue about which answers are right, the law needs to choose to support one side of the debate to some extent, and that decision could be coming soon.

A case has recently reached the supreme court, called Students for Fair Admissions(SFFA) V. Harvard, in which the SFFA, a nonprofit group of 20,000 anti-affirmative action supporters, sued Harvard over their consideration of race in the admissions process. The nonprofit claims that Harvard is violating title 6 of the civil rights act of 1964, which prevents any federally funded program or activity from discriminating based on race, color, or national origin. Because Harvard receives research funding and grants from the federal government, their use of affirmative action in the admissions process would be illegal if the SFFA can prove that they discriminate based on race to a significant effect. However, past precedent cases like Grutter V. Bollinger have legalized affirmative action as long as race is used to equal effect, among many other factors, for the sole purpose of creating a more diverse environment. Under this case, using race in the admissions process also cannot “unduly harm nonminority applicants” (Justice O'Connor’s reasoning in Grutter V. Bollinger). These precedent cases mean that the SFFA also has to prove that Harvard’s admissions unreasonably weighed race more than other factors that may create diversity, and that affirmative action unreasonably and intentionally harmed nonminority groups' admissions.

Harvard has three main arguments in defense of its policy. First, they say that the SFFA lacks the standing to bring the case to court. An organization must be a related and/or affected party to sue in court, and the SFFA claims that it is suing on behalf of its members. However, Harvard argues that it is completely disconnected from its members, and is being used by the president, Edward Blum, to further his political agenda. SFFA members stated that they have not attended any official meetings, and have not said, on the recommendations of their counsel, whether they voted for anyone on the SFFA’s board of directors. This could mean that the organization isn't representing its members, which would mean that it has no standing in court.

Second, the precedents from cases like Grutter V. Bollinger show that universities may consider race to expand their diversity, because it is a compelling school interest to enrich education through diversity. Harvard argues that it follows the guidelines set by these precedent cases when considering race, because their considerations are tailored towards each individual where race is just one of the many factors, and is not overly consequential. This is supported by Harvard's lack of racial balancing, which balances the ratio of races, and lack of a quota for minorities. Harvard also argues that without considering race, they would have no other easy way of maintaining a diverse environment, which infringes on their academic freedom and school interests. 

Third, Harvard argues that while they do give a plus factor to minority applications, they don’t intentionally discriminate against Asian Americans. The SFFA has the burden of proof, and most of their case is statistics, which Harvard argues do not show intent. The SFFA needs to prove that Harvard intentionally discriminated against Asian Americans, which cannot be done with statistics unless they are overwhelming enough to make a reasonable inference. So, Harvard is arguing that the SFFA does not have enough legally admissible evidence to prove intentional discrimination.

The SFFA has 2 main points attacking Harvard's use of affirmative action. First, they argue that Harvard is intentionally discriminating against Asian Americans. The precedent case Village of Arlington Heights v. Metropolitan Housing, in which minority and low-income groups were practically barred from residing in a neighborhood, created the guidelines for identifying intentional discrimination in court. Evidence of intentional discrimination can come from the discriminatory effect, historical background, events leading up to, and abnormal procedures preceding the event, in this case, school admissions. The SFFA argues that because statistics show that Harvard’s admissions policy is more disadvantageous to Asian Americans, intentional discrimination is proven through discriminatory effect. This is exemplified by Harvard’s scoring system, which scores applicants from 1-6, with 1 being best. They are scored on 5 categories: Academics, extracurriculars, athletics, personality, and overall. The SFFA found that while Asian Americans outperformed other minority groups in academics and extracurriculars, they consistently received the lowest scores for personality, which is a subjective assessment of traits. The SFFA argues that there is no logical or reasonable explanation for this discriminatory effect other than intentional discrimination. They also noted how Harvard’s internal investigation by its Office of Institutional Research(OIR) found evidence of unreasonable discrimination against Asian Americans. The OIR found, when trying to model Harvard’s admissions, that after considering academics, legacy, athletics, extracurriculars, and personality, Harvard should be comprised of about 26% Asian-Americans, compared to the actual 19%. It was only when adding in the “demographics” category, in which race is a large factor, that Harvard's admissions were accurately modeled. Furthermore, corroborating the SFFA’s research, the OIR also found that Asian Americans were not just the lowest scoring race in the personality category, but their skewed personality scores frequently lead to rejection. When comparing non-athlete non-legacy Asian and white applicants, the OIR found that Asian acceptance rates were lower despite outperforming(on average) white applicants in every category other than personality. Based on this data, the OIR found that being Asian-American decreases the chance of being accepted, which cannot be explained by Harvard's preference towards other minority groups. The SFFA argues that this shows a discriminatory effect, which would prove Harvard’s intentionally harmful discrimination.

The SFFA’s second main point is that Harvard has a historical background of intentional discrimination against minorities, and because of the precedent set by Arlington Heights v. Metropolitan Housing, this could also prove intentional discrimination in court. In the 1920s, Harvard found that an influx of jews were being accepted in their admissions, ruining their diversity. To combat this, Harvard’s president, Abbott Lowell, knowing that blatant rejection based on race would cause a backlash, took three steps to discriminate against Jewish applicants without getting caught. First, Harvard limited it's incoming class to 1,000 students. Next, it rescinded a rule that had required it to admit those in the top 7 of their graduating class. Finally, Harvard stated that it would put a greater emphasis on each applicant’s character, compatibility with Harvard, and personality. In a public statement, Harvard said that “no man will be kept out on grounds of race,” and that “[race] is by no means the whole record.” These three changes allowed Harvard to control the number of Jews admitted which they eventually admitted to in 2015. The SFFA argues that Harvard essentially uses the same system as Lowell to keep the number of Asian-American students below 20%, which cannot be reasonably explained with anything other than intentionally harmful discrimination.

Although the supreme court has not yet reached a verdict, It is clear from both sides’ arguments that educational institutions should not be allowed to look at race when determining admissions. The SFFA makes a much stronger case than Harvard, and has arguments that refute almost all of Harvard’s main defenses. The first of Harvard’s main arguments, that the SFFA has no standing in court, is completely irrelevant to the issue. While most of the members of the SFFA may not have participated in the decision to sue Harvard, it can be reasonably inferred that they joined students for fair admissions because they don’t support affirmative action in school admissions. This means that the SFFA is representing their members, and Harvard is just trying to make it seem like they aren’t because of a legal technicality. Instead of defending themselves from the accusations of intentional discrimination, this argument is tailored to try and get the case thrown out and swept under the rug. Their second argument, that looking at race to achieve diversity is a school interest, is weak. First of all, while diversity is beneficial to schools, there are many other effective ways to create it without actually looking at race. The precedent case Grutter V. Buttinger outlines that schools must seriously consider race-neutral alternatives if they want to create student diversity. However, Harvard has not once considered using race-blind admissions and dismissed the very idea as impossible before even trying, which goes directly against supreme court orders. Also, with race visible to schools, they will always be able to hide unfair racial discrimination under “personality scores” or through other means, like Harvard admitted to doing in the 1920s under Harvard president Lowell, and which it seems to be doing now. Finally, Harvard’s third argument, that they don’t intentionally discriminate against Asian Americans, has been disproven both by research conducted by the SFFA and their own Office of Institutional Research(OIR). Harvard says that the SFFA’s proof of intentional discrimination is purely statistical, which, unless overwhelming, cannot prove the intent of the school. However, the SFFA brought up the precedent case Village of Arlington Heights v. Metropolitan Housing, which outlined the requirements to prove intent. They then showed how the statistics prove the discriminatory effect of Harvard’s admissions, and went over its historical discrimination, both of which can be used, as outlined by precedent, to identify intent. The SFFA has therefore succeeded in refuting Harvard’s major points of defense, and as long as Harvard’s attempt to get the case thrown out from a legal technicality is dismissed, The SFFA should win.

If the SFFA does end up winning, the effects on the admissions process would be huge. As an Asian American high school student myself, I have faced discrimination before, but nothing to the level of Harvard’s admissions process. I can only hope that I am never rejected from an amazing school, not because I wasn’t qualified, but because there were simply too many Asian Americans already there. I would never have believed this could happen In America, especially in this era, but it is happening in schools across the country right now to so many people. It is wrong to reduce people’s whole identities to their race, and it is wrong to directly control the number of minorities that are admitted into schools, like a chef using some amount of flour to make the perfect cake. People are not just ingredients for schools to mix together, and they are more than just their race. And while of course different cultures and perspectives are valuable, that does not justify the suppression of one culture to nurture another. America was founded on its equality of opportunity, which gives everybody an equal chance to succeed, and not equality of outcome, which artificially raises the minority at the cost of the oppression and abuse of the majority.

Sources:

presidency.ucsb.edu/documents/executive-order-10925

oyez.org/cases/2022/20-1199

lawyerscommittee.org/students-for-fair-admissions-sffa-v-harvard

lawyerscommittee.org/wp-content/uploads/2020/07/Docket-418_Harvards-Memo-in-Sppt-of-Motion-SJ.pdf

lawyerscommittee.org/wp-content/uploads/2020/07/Docket-413_SFFA-Memo-in-Sppt-of-SJ.pdf